Ansson,: The North American Agreement on Environmental Protection and the THE NORTH AMERICAN AGREEMENT ON ENVIRONMENTAL PROTECTION AND THE ARCTIC COUNCIL AGREEMENT: WILL THESE MULTINATIONAL AGREEMENTS ADEQUATELY PROTECT THE ENVIRONMENT? RICHARD J. ANSSON, JR. I. INTRODUCTION States usually form multinational legal regimes to solve common prob- lems and disputes. Regimes are social institutions composed of States vol- untarily agreeing to certain principles, norms, rules, and decision-making powers that govern the States in those agreed-upon areas.' Recently, the United States entered into two multinational environmental legal regimes' to remedy the problem of transboundary environmental degradation.' These re- " Adjunct Professor of Law, University of Missouri-Kansas City School of Law. LL.M., 1998, University of Missouri-Kansas City School of Law; J.D., 1997, University of Okla- homa Law Center; B.A., 1994, University of Oklahoma. The author thanks Tricia Elizabeth Ansson for her help in the preparation of this article. 1. See GAIL OSHERENKO & ORAN R. YOUNG, The Formation of InternationalRegimes: Hypotheses and Cases, in POLAR POLrrIcs: CREATING INTERNATIONAL ENVIRONMENTAL REGiMES 1, 1-2 (1993) [hereinafter OSHERENKO & YOUNG 1]. Multinational legal regimes have been formed by states to address numerous issues. The river commissions in Europe were the first examples of multinational legal regimes. ROBERT E. RIGGS & JACK C. PLATO, THE UNITED NATIONS-INTERNATIONAL ORGANIZATION AND WORLD POLITIcs 3 (2d ed. 1994). For instance, "the Central Rhine commission was created in 1804 by an agreement between France and Germany; it provided for extensive regulation of river traffic, the mainte- nance of navigation facilities, and the hearing and adjudication of complaints for alleged vio- lations of the Commission's rules." Id. Interestingly enough, this commission functions today much as it did in 1804. Id. Since then, however, numerous states have voluntarily entered into agreements on a variety of issues including, but not limited to, military issues, trade alliance issues, intellectual property issues, and environmental issues. 2. See, e.g., Senator Lloyd Bensten, Review of U.S.-Mexico Environmental Issues, CURRENTS: INT'L TRADE L.J., Winter 1991, at 5; Donald R. Rothwell, InternationalLaw and the Protection of the Arctic Environment, 44 INT'L & COMP. L.Q. 280, 280 (1995) [hereinafter Rothwell I]. 3. Transboundary environmental degradation occurs when pollution from one state de- grades the environment of a neighboring state. For instance, if a Mexican industrial coal plant Published by CWSL Scholarly Commons, 1998 1 102California CALIFORNIAWestern International WESTERN Law INTERNATIONAL Journal, Vol. 29, No.LAW 1 [1998], JOURNAL Art. 3 [Vol. 29 gimes are the Environmental Side Agreement,4 created by the North Ameri- can Free Trade Agreement (NAFTA),5 and the Arctic Council Agreement.6 The United States advocated NAFTA's Environmental Side Agreement, a trilateral agreement between the United States, Mexico, and Canada, in re- sponse to fears that increased trade along the United States-Mexican border under NAFTA would exacerbate preexisting pollution problems in the southwestern United States.' NAFTA's Side Agreement created the Com- mission for Environmental Cooperation and charged it with resolving envi- ronmental degradation claims through a dispute mechanism process. 8 Under this process, the Commission first may hear disputes advanced by a citizen or non-governmental organization,9 and second, may hear claims com- located near the United States-Mexican border has polluted the air, and that pollution effects territory within the United States, then transboundary environmental degradation has oc- curred. 4. North American Agreement on Environmental Cooperation, Sept. 8-14, 1993, Can.- Mex.-U.S., 32 I.L.M. 1480 [hereinafter Environmental Side Agreement]. 5. North American Free Trade Agreement, Dec. 8-17, 1992, Can.-Mex.-U.S., 19 U.S.C.A. §§ 3301-3473, 32 I.L.M. 289 (entered into force Jan. 1, 1993); see also North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993). NAFTA, as enacted, creates a barrier-free trade zone among the nations of Canada, the United States, and Mexico. 6. Joint Communiqu6 and Declaration on the Establishment of the Arctic Council, Sept. 19, 1996, Can.-Den.-Fin.-Ice.-Nor.-Russ.Fed.-Swed.-U.S., 35 I.L.M. 1382 [hereinafter Arctic Council Agreement]. For previous Arctic multinational agreements, see Arctic Environmental Protection Strategy, June 14, 1991, Can.-Den.-Fin.-Ice.-Nor.-Swed.-U.S.S.R.-U.S., 30 I.L.M. 1624 [hereinafter Arctic Environmental Agreement]; Agreement on the Conservation of Polar Bears, Nov. 15, 1973, Can.-Den.-Nor.-U.S.-U.S.S.R., 13 I.L.M. 1624 (entered into force Jan. 1, 1974) [hereinafter Polar Bear Agreement]. 7. See, e.g., Kal Raustiala, The PoliticalImplications of the Enforcement Provisions of the NAFTA Environmental Side Agreement: The CEC as a Model for Future Accords, 25 ENVTL. L. 31, 34 (1995). Environmental degradation had steadily risen along the United States-Mexican border during the 1970s and 1980s. By the early 1990s, the American Medi- cal Association described the border region as a "virtual cesspool and breeding ground for infectious disease." Lynn Stanton, A Comparative Analysis of the NAFTA's Environmental Side Agreement, 2 HASTINGS W.-N.W. J. ENVTL. L. & POL'Y 71, 72 (1994) (citing Michael Satchell, Poisoning the Border, U.S. NEWS & WORLD REPORT, May 6, 1991, at 32). The re- port also noted that "[u]ncontrolled air and water pollution [wals rapidly deteriorating and [this] seriously affect[ed] the health and future economic vitality on both sides of the border." Id. The report also noted that "[t]here... [were] two obvious explanations for what ... [had] caus[ed] the environmental degradations: (1) the Maquiladoras improperly dispose[d] of their hazardous wastes; and (2) the 'colonias,' the shanty towns which spr[alng up around the Ma- quiladoras, have improper and inadequate water sanitation facilities." Id 8. For a discussion on the dispute resolution process, see Kevin W. Patton, Note, Dispute Resolution Underthe North American Commission on Environmental Cooperation, 5 DUKE J. COMP. & INT'L L. 87 (1994); Jeffrey P. Bialos & Deborah E. Siegel, Dispute Resolution Un- der the NAFTA: The Newer and Improved Model, 27 INT'L LAW. 603 (1993). For a discussion on some of the initial cases to be heard under the dispute mechanism process, see Jason Coat- ney, Comment, The Council on Environmental Cooperation:Redaction of Effective Enforce- ment Within the North American Agreement on Environmental Cooperation, 32 TULSA L.J. 823 (1997). 9. Environmental Side Agreement, supra note 4, art. 14. The agreement defines a non- governmental organization as any scientific, professional, business, non-profit, or public in- https://scholarlycommons.law.cwsl.edu/cwilj/vol29/iss1/3 2 1998]Ansson,: THE NORTH The North AMERICAN American AGREEMENT Agreement ON ENVIRONMENTALon Environmental PROTECTION Protection and103 the menced by a signatory Party." The Parties adopted this adjudication process to "enhance compliance with, and enforcement of, environmental laws and regulations"" and to "strengthen cooperation on the development and im- provement of environmental laws, regulations, procedures, policies, and practices." 2 The Arctic States adopted the Arctic Council Agreement, an eight-party multilateral agreement, 3 to protect the Arctic's environment from future Exxon Valdez-like incidents. 4 This agreement seeks to protect the Arctic's pristine environment through a quasi-legislative intergovernmental forum charged with recommending, implementing, and developing environmental policies. 5 The Arctic States maintain this intergovernmental forum will "lend greater efficiency, focus and political impetus to existing circumpolar terest organization, which is neither affiliated with, nor under the direction of, a government. See id. art. 45(1)(b). 10. Environmental Side Agreement, supra note 4, art. 22(1). 11. Id. 12. Id. art. l(f). See generally Stephen Zamora, NAFTA and the Harmonization of Do- mestic Legal Systems: The Side Effects of Free Trade, 12 ARIZ. J. INT'L & COMP. L. 401, 402 (1995) (noting that the Free Trade Agreement does not unify domestic laws, but the commis- sions could initiate harmonization). 13. The eight Arctic States are: Canada, Denmark, Finland, Iceland, Norway, Russian Federation, Sweden, and the United States. See Arctic Counsel Agreement, supra note 6. 14. While shipping oil out of Alaska, the Exxon Valdez, a single-hulled supertanker, col- lided with the submerged granite of Bligh Reef in Alaska's Prince William Sound shortly af- ter midnight on Mar. 24, 1989. ZYGMUNT PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY 163-64 (1992). The submerged granite reef ruptured the hull of the supertanker, and eleven million gallons of crude oil subsequently spewed from the wreck. Id. Aided by a strong northeasterly wind, the oil slick spewed out over 1,000 miles of coast- line. Id. at 64. The extraordinarily rich ecosystem was severely effected by the spillage. Id Indeed, one commentator noted: The ecosystem hit by the Exxon-Valdez spill was extraordinarily rich. Affected species included the herring, black cod, cutthroat trout, dolly varden, shark, hali- but, rock fish, shellfish, several species of salmon, sea otters, fur seals, stellars, sea lions, harbor porpoises, dall porpoises, blue whales, gray whales,